Modernization, Moderation, and Political Minorities: A Response to Professor Strauss

The
Supreme Court is frequently accused of declaring laws unconstitutional based on
little more than the justices' ideological preferences. In "The Modernizing Mission of Judicial
Review", 76 U. Chi. L. Rev. (forthcoming 2009), Professor Strauss argues that
the Supreme Court's decisions in these areas are efforts to "modernize" the law
by facilitating and accommodating developments in popular opinion, rather than
actions that merely entrench the justices' ideological viewpoints or personal
whims. No one can deny that the
justices' beliefs regarding future popular opinion are factors in the Court's
decisionmaking. Justices care about their legacies and future reputations; they
would prefer to be remembered as a prescient jurist, such as the first Justice
Harlan, rather than as Roger Taney. And
these forward-looking influences have undoubtedly produced some Supreme Court
decisions that fit within the modernizing paradigm that Professor Strauss
describes. But it is hard to accept
Professor Strauss's descriptive claim that modernization is the Court's
"dominant" or "central" approach in its capital-punishment and modern substantive-due-process
jurisprudence. His analysis overstates
the Supreme Court's willingness and ability to accommodate future public
opinion at the expense of judicial preferences; the Supreme Court simply has
not displayed the level of modesty, or the respect for popular opinion, that
Professor Strauss seeks to attribute to it. Nor can the modernization framework
reconcile the Court's capital-punishment and substantive-due-process cases with
principles of democratic government. On
the normative side, there are reasons to object to modernization as a theory of
judicial review in addition to those that Professor Strauss identifies.